You are here: / Recovery Under the Doctrine of Quantum Meruit Was Proper—Proof of...

Search Results

/ ,

Recovery Under the Doctrine of Quantum Meruit Was Proper—Proof of Damages Was Sufficient

The Second Department determined defendants, who did construction work without a written contract, were entitled to recover under the doctrine of quantum meruit.  The court noted that proof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs:

The elements of a cause of action sounding in quantum merit are: (1) the performance of services in good faith, (2) the acceptance of services by the person to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered … . Here, the trial court properly determined that the … defendants performed services in good faith, that the plaintiff accepted those services, and that the … defendants expected to be compensated therefor. The court also properly determined that the … defendants provided sufficient evidence of the reasonable value of their services. The unsigned agreement furnished evidence of such value … . In addition, the … defendants presented proposals that they submitted to the plaintiff for payment in connection with additional work that they performed, invoices and proof of payments to subcontractors, and invoices and proof of payments to suppliers of materials and equipment. The fair and reasonable value of the … defendants’ services may be properly based on evidence concerning the amount that they billed the plaintiff for such services, and the amounts that subcontractors billed them for their services and for costs of supplies and equipment … .

Moreover, “[p]roof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs” … . The record demonstrates that the … defendants, who had 20 years of experience in construction and had built over 100 homes, had knowledge of the actual costs of the services being provided … . Therefore, the … defendants’ testimony provided further evidence of the reasonable value of the services performed … . Johnson v Robertson, 2015 NY Slip Op 06658, 2nd Dept 8-26-15

 

/

Although the President of a Corporation Was Also a Member of Defendant Limited Liability Company, the Corporation and Limited Liability Were Not Shown to Be “United in Interest” Such that the “Relation-Back” Doctrine Would Apply to Allow Adding the Corporation as a Defendant After the Statute of Limitations Had Run

The Second Department determined plaintiffs were not entitled to amend the complaint to add a party after the statute of limitations had passed pursuant to the “relation-back” doctrine. Although the president of the party to be added, Madjek, Inc., was a member of Madjek, LLC, (a named defendant), that relationship alone was not enough to demonstrate Madjek, LLC, and Madjek, Inc. were “united in interest” such that one would be vicariously liable for the acts of the other. The court explained the “relation-back” and “united in interest” criteria:

To establish the applicability of the relation-back doctrine, a plaintiff is required to prove that: (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the commencement of the action such that it will not be prejudiced in maintaining its defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against it as well (see CPLR 203[b] …). Once a defendant has demonstrated that the statute of limitations has expired, the burden is on the plaintiff to establish the applicability of the relation-back doctrine … .

While it is undisputed that the first prong of the test has been satisfied here, the plaintiffs failed to establish that the Madjek defendants are united in interest. Defendants are united in interest only when their interest “in the subject-matter [of the action] is such that [the defendants] stand or fall together and that judgment against one will similarly affect the other” … . Defendants are not united in interest if there is a possibility that the new party could have a different defense than the original party … . Here, the only fact that the plaintiffs established in support of their contention that the Madjek defendants were united in interest was that the president of Madjek, Inc., was a member of Madjek, LLC. This fact, standing alone, is insufficient to establish that the Madjek defendants are vicariously liable for the acts of each other and, thus, is insufficient to establish that the Madjek defendants are united in interest … . Montalvo v Madjek, Inc., 2015 NY Slip Op 06661, 2nd Dept 8-26-15

 

/

Case Should Not Have Been Dismissed on Forum Non Conveniens Grounds—Analytical Criteria Explained

The First Department determined Supreme Court should not have dismissed plaintiff’s action on “forum non conveniens” grounds. The action concerned a lease and guaranty for property located in Georgia, but the property itself was not part of the dispute. Both parties were authorized to do business in New York, plaintiff’s principal place of business was in New York, the lease was executed in New York and the guaranty was executed in New Jersey. The fact that Georgia law was to be applied (by the terms of the contract) did not control. The court explained the analytical criteria:

Generally, “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed” … .

“The burden rests upon the defendant challenging the forum to demonstrate relevant . . . factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not” … . “Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum” … .

The court may also consider the residency of the parties and where the transaction out of which the case arose occurred … . “No one factor is controlling . . . [t]he great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case” … . Here, there is a substantial nexus to New York.

“Although the residence of a plaintiff is not the sole determining factor on a motion for dismissal on grounds of forum non conveniens, it has been held to generally be the most significant factor in the equation” … . As the motion court acknowledged, in this case both parties are authorized to do business in New York and the plaintiff’s principal place of business is in New York. While the real property that is the subject of the lease and guaranty is located in Georgia, the actual property is not at issue in this case. In any event, the lease was actually executed in New York and some of the correspondence was sent to the nonparty tenant at a New York address. Moreover, the guaranty which is the subject of this litigation was executed in New Jersey and the defendant guarantor, a New Jersey corporation with its principal executive office in New Jersey, does not conduct any business in Georgia. While counsel for the nonparty tenant submitted an affidavit listing several potential witnesses who are located in either Georgia or Tennessee, there is no indication as to what knowledge these proposed witnesses have relating to the issues in this case, or whether they would even testify. Thor Gallery at S. DeKalb, LLC v Reliance Mediaworks (USA) Inc., 2015 NY Slip Op 06644, 1st Dept 8-25-15

 

/ ,

“At Will” Employee Stated a Cause of Action Alleging Defendants Fraudulently Induced Him to Take the “At Will” Job

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff had stated a cause of action for fraud in the inducement in connection with plaintiff’s acceptance of “at will” employment with defendants. The complaint alleged that defendants induced plaintiff to leave his well-compensated position with J P Morgan by falsely indicating plaintiff was being hired because of defendants’ heavy work load. The complaint further alleged that defendants did not have much work and plaintiff was hired solely to provide defendants with his business contacts. After turning over his business contacts, plaintiff alleged, defendants terminated him, claiming there was not enough work to support his position. The First Department reasoned plaintiff was not seeking damages for wrongful termination, which is not available for an “at will” employee, but rather was seeking damages for defendants’ fraudulently inducing him to give up his lucrative employment with J P Morgan in order to take the “at will” employment. The court further noted that the “general” merger clause in the “at will” employment contract did not preclude the action and the action concerned statements of material existing fact, not (nonactionable) statements of future expectations:

An at-will employee, who has been terminated, can not state a fraudulent inducement claim on the basis of having relied upon the employer’s promise not to terminate the contract … , or upon any representations of future intentions as to the duration or security of his employment … . However, where an at-will employee alleges an injury “separate and distinct from termination of the [his] employment,” he may have a cause of action for fraudulent inducement … . The at-will employee must allege not that his employer wrongly fired him, but that “[he] would not have taken the job in the first place if the true facts had been revealed to [him]” … .

Plaintiff does not allege that defendants wrongfully terminated him. He claims that they misrepresented the nature of the job that they were hiring him to do, that they were only hiring him to gain access to his contacts and that if they had told him this he would not have left his job at J.P. Morgan to work for them. Indeed, plaintiff’s injury preceded his termination.

Nor are plaintiff’s damages speculative, since he alleged that they stem not from his loss of employment with defendants, but from his loss of employment with J.P. Morgan. These damages represent “the sum necessary for restoration to the position occupied before the commission of the fraud” … . Laduzinski v Alvarez & Marsal Taxand LLC, 2015 NY Slip Op 06646, 1st Dept 8-25-15

 

/

Plaintiff Entitled to Summary Judgment Re: Fall from Non-Defective Ladder After Co-Worker Who Had Been Stabilizing the Ladder Was Called Away—Defendants Did Not Demonstrate Plaintiff Was Adequately Protected—Comparative Negligence Is Not Relevant

The First Department, over a dissent, determined plaintiff’s motion for summary judgment for the Labor Law 240 (1) cause of action should have been granted. Plaintiff fell from a non-defective ladder when he lost his balance while attempting to use a drill to install a metal stud.  A co-worker, who had been stabilizing the ladder, had been called away five minutes before plaintiff fell. Plaintiff alleged no one else was around who could have stabilized the ladder. The court noted that plaintiff’s alleged comparative negligence was not relevant. The only relevant consideration is whether plaintiff was provided with adequate protection, an issue not addressed by defendants:

Supreme Court erred in denying plaintiffs’ motion for summary judgment against defendants on the cause of action alleging a violation of Labor Law § 240(1). The dissent mischaracterizes the majority’s position. We do not simply hold that “a plaintiff-worker’s testimony that he fell from a non-defective ladder while performing work . . . alone establish[es] liability under Labor Law § 240(1). Rather, it is undisputed that no equipment was provided to plaintiff to guard against the risk of falling from the ladder while operating the drill, and that plaintiff’s coworker was not stabilizing the ladder at the time of the fall. Under the circumstances, we find that plaintiff’s testimony that he fell from the ladder while performing drilling work established prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim … . In response, defendants failed to raise a triable issue of fact concerning the manner in which the accident occurred or whether the A-frame ladder provided adequate protection. Their arguments that plaintiff caused his own injuries, by allegedly placing himself in a position where he had to lean and reach around the side of the ladder to fix the wall stud, at most establish comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Caceres v Standard Realty Assoc., Inc., 2015 NY Slip Op 06645, 1st Dept 8-25-15

 

/

Labor Law 240 (1) Concerns Only Whether Proper Safety Equipment Was Provided—Comparative Negligence Is Not Relevant

The First Department determined plaintiff was entitled to summary judgment under Labor Law 240 (1) for injury incurred while using the top half of an extension ladder which did not have rubber feet. The court noted that contributory or comparative negligence is not a defense to a Labor Law 240 (1) cause of action:

Plaintiff presented evidence establishing that defendants did not provide “proper protection” within the meaning of Labor Law § 240(1). The record indicates that plaintiff “only saw the extension ladder” in the area where he was working. There was no scaffolding available to plaintiff. Plaintiff was not wearing a safety harness, and there was no appropriate anchor point to tie off the ladder.

We reject defendants’ assertion that plaintiff’s conduct was the sole proximate cause of his injuries. Plaintiff’s knowing use of half of the extension ladder without proper rubber footings goes to his culpable conduct and comparative negligence. Comparative negligence is not a defense to a claim based on Labor Law § 240(1), where, as here, defendants failed to provide adequate safety devices … . Further, defendants failed to show that plaintiff refused to use the safety devices that were provided to him. Stankey v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06643, 1st Dept 8-25-15

 

/

Address Errors Rendered Designating Petition Invalid—Petitioner Not Entitled to “Opportunity to Ballot”

The Third Department determined that errors in indicating the correct address of signatories invalidated the designating petition, Because such errors are not deemed merely “technical” errors under the Election Law, the petitioner’s request for an “opportunity to ballot” was properly denied:

Pursuant to Election Law § 6-130, “[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed.” Strict compliance with Election Law § 6-130 is mandated, as its requirements constitute “a matter of substance and not of form”… . * * *

… [T]he discretional remedy of an opportunity to ballot should be granted “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” … . Here, we find that Supreme Court did not abuse its discretion in concluding that the opportunity to ballot remedy is not appropriate in light of the fact that the defects at issue have been held to be substantive and not technical in nature … . Matter of Canary v New York State Bd. of Elections, 2015 NY Slip Op 06638, 3rd Dept 8-20-15

 

/ ,

Fact that Notary Public Did Not Administer an Oath to the Signatories on the Designating Petition Did Not Invalidate the Petition

The Third Department determined the signatures on the candidate-designating petition were valid, despite the respondent’s, Sira’s, admission that no oath was administered to the signatories which Sira signed as a notary public. The court noted that, under the Election Law, Sira could have merely witnessed the signatures, without signing as a notary public. Because there was no evidence the signatures were fraudulent in any way, the petition was deemed valid:

“A designating petition will be invalidated if the challenger shows, by clear and convincing evidence, that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Here, although Sira herself attested to 307 signatures on her designating petition as a notary public, which included an affirmation that the signatories had sworn that their statements were true, she admitted at the hearing that she had not administered an oath to the signatories or obtained a statement as to the truth of the matter to which they subscribed as required by Election Law § 6-132 (3) … . Sira concedes that those 307 signatures are therefore invalid. However, we are unconvinced that Sira’s actions amounted to fraud warranting invalidation of the entire designating petition. Notably, as a registered member of the Republican Party living in Fulton County, Sira was not required to attest to the signatures on her petition as a notary public; rather, Sira could have attested as a witness to the signatures, requiring only an affirmation that the signatories identified themselves as the individuals who signed the petition and that they signed the petition in the presence of the witness (see Election Law § 6-132 [2]). Significantly, there is no evidence that Sira did not witness the signatures she attested to or that the signatures were not authentic. Thus, in our view, it has not been established by clear and convincing evidence that, under these circumstances, invalidation of Sira’s entire designating petition is warranted on this basis… . Matter of Vincent v Sira, 2015 NY Slip Op 06636, 3rd Dept 8-20-15

 

/ ,

Fraud Does Not Require Proof of a “Nefarious Motive”—Fact that Respondent Knew that the Spouses of Three Signatories Signed the Petition on the Signatories’ Behalf Invalidated the Petition, Despite the Fact that There Were a Sufficient Number of Valid Signatures

The Third Department invalidated the designating petition because the respondent, Hammond, admitted he witnessed the signatures of the three people who were the spouses of the person purportedly signing the petition.  The petition included 38 signatures, 30 more than the eight required to receive the party designation. Hammond thought having the three spouses sign was proper. The court noted that the signatures were fraudulent, despite the absence of an intent to defraud, and Hammond’s knowledge of the fraud required invalidation:

A court will invalidate a designating petition where the challenger establishes, by clear and convincing evidence, “that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Where a candidate is involved in the fraud, the challenger need not show that the fraud permeated the entire petition …, and “the petition may be invalidated even if it contains a sufficient number of valid signatures independent of those fraudulently procured” … . * * *

Fraud … does not require proof of a “nefarious motive” … . Inasmuch as Hammond participated in the fraud, and regardless of the fact that the designating petition contained a sufficient number of signatures independent of the three signatures that were fraudulently obtained, we invalidate respondents’ designating petition and strike their names from the ballot … . Matter of Mattice v Hammond, 2015 NY Slip Op 06637, 3rd Dept 8-20-15

 

/ ,

Failure to Administer Oath to Two Signatories Invalidated Petition—When Oath Required Under the Election Law Explained

The Third Department determined that the failure to administer the oath required by the Election Law to two signatories invalidated the designating petition. The court explained when the oath is required under the Election Law, and when it is sufficient to merely witness a signature:

The Election Law provides a much simpler process for a local party member to obtain petition support for a potential candidate than for an individual of either another political party or from outside the relevant political subdivision. A local party member may obtain petition signatures and affirm with a simple statement that the signatories “subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who signed this sheet” (Election Law § 6-132 [2]). Where the petition is obtained by an individual other than a statutorily authorized local party member, however, the petition may be approved by a notary public or commissioner of deeds, but it is further required that each individual signatory be “duly sworn” (Election Law § 6-132 [3]).

Here, [respondent] was gathering signatures on multiple party lines, and at issue are three lines in which she was not a duly registered party member. At the hearing, in addition to testimony from signatories that no oath or affirmation as to the truth of their statements was elicited prior to signing the petitions, [respondent] herself clearly acknowledged in her testimony that she had neither administered an oath to any signatory on the challenged petitions, nor had she asked any of them to swear or affirm to tell the truth before signing. This is contrary to her attestation as a commissioner of deeds, which appears on the face of each sheet of the challenged designating petitions, as required pursuant to Election Law § 6-132 (3). As respondent argues, case law has established that not all of the formalities of an oath need be observed … . Nonetheless, we are constrained to find that the evidence did not support a finding of substantial compliance with the statutory requirements. Accordingly, the signatures collected by [respondent] are rendered invalid… . Matter of Mertz v Bradshaw, 2015 NY Slip Op 06639, 3rd Dept 8-20-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy